www.sorehands.com writes: In the first California appeals court ruling, in Hypertouch v. Valueclick, it is ruled that the I-CAN-SPAM Act does not preempt California Business & Professions Code Section 17529.5. California Business & Professions Code Section 17529.5 prohibits the use of falsified headers and subject lines that are likely to mislead recipients.

Spammers have been claiming, and some courts have been ruling, that to survive preemption, a Plaintiff has to show all the elements of fraud (false representation, knowledge, reliance, and damage from the reliance.) The reliance and damage from the reliance is difficult as it would essentially require the recipient to buy the penis enlargement pills and show that they don't work, or to send the money to the Nigerian prince. An ISP could never show reliance and harm, as they are not the recipient and would not be responding to e-mails traversing their systems.

Spammers, and Courts have been claiming that the rulings in Gordon v. Virtumundo, 575 F.3d 1040, and Omega World Travel, Inc. v. Mummagraphics (4th Cir. 2006)469 F.3d 348 rules that state laws are preempted, but this is dispelled in Hypertouch. In both Gordon and Omega, there was no false information inserted, just not complete (the spammer could be identified using a whois lookup.) In Hypertouch, it is alleged that there were false names in the headers. The Court's seem not to get, or it has not been argued, that a from line is supposed to say who/what an e-mail is from, not from the "Free 50 inch plasma TV." What legitimate business hides their identity when sending an e-mail?

While most of the federal courts have been ruling that it is not required, those rulings do not bind the state courts. This ruling binds all California courts.

The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam. This is very important, as in most, and my own litigation, the Defendants' David Szpak and Emmanuel Gurtler have their affiliates agree not to spam, but had hired Yamboo Financials, (See http://www.spamhaus.org/rokso/evidence.lasso?rokso_id=ROK3095 ) which had 17 different affiliate ids, and ignored multiple lawsuits for spamming.

If you hire someone to send email for for you, you're responsible for their actions.

Lessons:

1. Don't hire spammers.

2. Make sure when you hire someone to send email for you, that the contract allows you to recover any expenses and judgements due to the actions of the emailer, and that you're hiring someone who will likely be around to actually pay such expense and judgements.